# THE STATE OF BOMBAY v. PANDURANG VINAYAR CHAPHALKAR AND OTHERS

- **Citation:** [1953] 1 S.C.R. 773
- **Court:** Supreme Court of India
- **Decided:** 1951-05-14
- **Case number:** Criminal Appeal No. 62 of 1951
- **Bench:** Mehr Chand Mahajan, ·Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bombay-v-pandurang-vinayar-chaphalkar-and-others-199
- **Pages:** 7

## Headnote

Bombay Bnilding (Control on Erection) Act, 1948, s. 15-Bornbay General Clauses Act, 1904, s. 25-Repeal of Ordinance and reenactment as Act-Notifications issued under Ordinance whether
continue in force-Construction of Act-Stat,.tory fictions.
The Bombay Building (Control on !Crection) Ordinance of
1948 applied to certain areas mentioned in the Schedule to the
Ordinance, and in exercise of the powers vested in it by the Ordinance the Government extended its provisions to certain other
areas including Ratnagiri in respect of buildings intended to be
used for cinemas and other places of entertainment, by a notifica~
tion of the 15th January, 1948. This Ordinance was repealed by
the Bombay Building (Control on Erection) Act of 1948 the provisions of which were similar to those of tbe earlier Ordinance.
Section 15(1) of the Act repealed that Ordinance and declared that
"the provisions of ss. 7 and 25, Bombay General Clauses Act,
1904, shall apply to the repeal as if that Ordinance were an enactment."
Held, reversing the judgment of the Bombay High Court, that
on a true construction of s. 15(1) of the abovesaid Act and s. 25 of
the Bombay General Clauses Act, 1904, the notification issued on
the 15th January, 1948, under the Ordinance continued in force
under t_he Act of 1948 and that by it the provisions of the Act
stood extended to other areas in the State including Ratnagiri to
the extent indicated in the notification.
Ex parte Walton: In re Levy (17 Cb. D. 746) and East End
Dwelling Co. Ltd. v. Finsbury Borough Cotmcil ([1952] A.G. 109)
referred to.
CRUIINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 62 of 1951.
Appeal by special leave granted by the Supreme
Court of India on the 14th May, 1951, from the Judgment and Order dated the 9th August, 1950, of the
High Court of Judicature at Bombay (Bavdekar and
Vyas JJ.) in Criminal Appeal No. 319of1950 arising
ou-t of the Judgment and Order dated the 6th
Januiuy, 1950, of the Court of the Sub-Divisional
Magistrate F.C., Ratnagiri City, in Criminal Case
No. 77 of 1949.
l~J.53
ltfarch 13.
1953
The State of
Bo1?Jbay
v.
Pandurang
Vina.yak
Ghaphalkar
and Others.
Mahajan J.
774
8UPREME COURT REPoRts
[1953]
M. C. Setalvad, Attorney-General fol' India (.G. N.
Joshi and P. A. Mehta, with him) for the appella,nt.
K. R. Chaudhury for the respondent.
1953. March 13. Tha Judgment of the Court was
delivered by
MAHA.JAN J.-The respondents were charged with
having committed an offence punishable under section
9(2) read with section 4 of the Bomba,y Building
(Control on Erection) Act, 1948, for commencing the
work of erection of a cinema theatre without obtaining the necessary permission from the controller of
buildings, Bombay.
The sub-divisional magistrate,
Ratnagiri, held that the Act not having been validly
extended to Ratnagiri, no permission of the controller
of buildings was necessuy for the construction.
He
accordingly acquitted them.
On appeal by the State
Government, the order of acquittal was maintained by
the High Court.
This appeal is before us by special
leave from the concur!ent orders of acquittal.
Special leave was granted on the Attorney-General
for India undertaking on behalf of the State Government of Bombay that whatever the decision of the
court might be, no proceedings will be taken against
the respondents in respect of the subject-matter under
appeal.
At the hearing of the appeal it was made
plain by the learned Attorney-General that no adverse
consequences will flow to the respondents or to their
building being completed, by the acquittal order being
pronounced as bad, and that the State Government
will not in any way interfere with the respondents
when they take steps to complete the building, the
construction of which was commenced without the
permission of the controller.
The State Government
merely wants to have the question of law decided as a
test case because the decision of the High Court, if
left unchallenged, would have far-reaching effects.
The facts giving rise

## Text

S.C.R.
SUPREME COURT REPORTS
773
THE STATE OF BOMBAY
v.
PANDURANG VINAYAR CHAPHALKAR
AND OTHERS.
[MEHR CHAND MAHAJAN and·BHAGWATI JJ.]
Bombay Bnilding (Control on Erection) Act, 1948, s. 15-Bornbay General Clauses Act, 1904, s. 25-Repeal of Ordinance and reenactment as Act-Notifications issued under Ordinance whether
continue in force-Construction of Act-Stat,.tory fictions.
The Bombay Building (Control on !Crection) Ordinance of
1948 applied to certain areas mentioned in the Schedule to the
Ordinance, and in exercise of the powers vested in it by the Ordinance the Government extended its provisions to certain other
areas including Ratnagiri in respect of buildings intended to be
used for cinemas and other places of entertainment, by a notifica~
tion of the 15th January, 1948. This Ordinance was repealed by
the Bombay Building (Control on Erection) Act of 1948 the provisions of which were similar to those of tbe earlier Ordinance.
Section 15(1) of the Act repealed that Ordinance and declared that
"the provisions of ss. 7 and 25, Bombay General Clauses Act,
1904, shall apply to the repeal as if that Ordinance were an enactment."
Held, reversing the judgment of the Bombay High Court, that
on a true construction of s. 15(1) of the abovesaid Act and s. 25 of
the Bombay General Clauses Act, 1904, the notification issued on
the 15th January, 1948, under the Ordinance continued in force
under t_he Act of 1948 and that by it the provisions of the Act
stood extended to other areas in the State including Ratnagiri to
the extent indicated in the notification.
Ex parte Walton: In re Levy (17 Cb. D. 746) and East End
Dwelling Co. Ltd. v. Finsbury Borough Cotmcil ([1952] A.G. 109)
referred to.
CRUIINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 62 of 1951.
Appeal by special leave granted by the Supreme
Court of India on the 14th May, 1951, from the Judgment and Order dated the 9th August, 1950, of the
High Court of Judicature at Bombay (Bavdekar and
Vyas JJ.) in Criminal Appeal No. 319of1950 arising
ou-t of the Judgment and Order dated the 6th
Januiuy, 1950, of the Court of the Sub-Divisional
Magistrate F.C., Ratnagiri City, in Criminal Case
No. 77 of 1949.
l~J.53
ltfarch 13.
1953
The State of
Bo1?Jbay
v.
Pandurang
Vina.yak
Ghaphalkar
and Others.
Mahajan J.
774
8UPREME COURT REPoRts
[1953]
M. C. Setalvad, Attorney-General fol' India (.G. N.
Joshi and P. A. Mehta, with him) for the appella,nt.
K. R. Chaudhury for the respondent.
1953. March 13. Tha Judgment of the Court was
delivered by
MAHA.JAN J.-The respondents were charged with
having committed an offence punishable under section
9(2) read with section 4 of the Bomba,y Building
(Control on Erection) Act, 1948, for commencing the
work of erection of a cinema theatre without obtaining the necessary permission from the controller of
buildings, Bombay.
The sub-divisional magistrate,
Ratnagiri, held that the Act not having been validly
extended to Ratnagiri, no permission of the controller
of buildings was necessuy for the construction.
He
accordingly acquitted them.
On appeal by the State
Government, the order of acquittal was maintained by
the High Court.
This appeal is before us by special
leave from the concur!ent orders of acquittal.
Special leave was granted on the Attorney-General
for India undertaking on behalf of the State Government of Bombay that whatever the decision of the
court might be, no proceedings will be taken against
the respondents in respect of the subject-matter under
appeal.
At the hearing of the appeal it was made
plain by the learned Attorney-General that no adverse
consequences will flow to the respondents or to their
building being completed, by the acquittal order being
pronounced as bad, and that the State Government
will not in any way interfere with the respondents
when they take steps to complete the building, the
construction of which was commenced without the
permission of the controller.
The State Government
merely wants to have the question of law decided as a
test case because the decision of the High Court, if
left unchallenged, would have far-reaching effects.
The facts giving rise -to the prosecution of the
res.pondents, shortly stated, are these: There was in
force in the State of Bombay an Ordinance, Bombay
S.C.R.
SUPREME COURT REPORTS
775
Buil~ing (Control on Erection) Ordinance, 1948. It
was applicable to certain areas specified in the
schedule. The district of Ratnagiri was not one of the
areas therein specified. Sub-section ( 4) of section 1 of
the Ordinance empowered the provincial government
by notification in the official gazette to extend to any
other area specified in such notification its provisions.
It further empowered the provincial government to
direct that it shall apply only in respect of buildings
intended to be used for such purpose as may be
specified in the notification. On 15th January, 1948,
the Government of Bombay issued the following
notification :--
"In exercise of the powers conferred by sub-section
(4) of section 1 of the Bombay Building (Control on
Erection) Ordinance, 1948 (Ordinance No. I of 1948),
the Government of Bombay is pleased to direct that
the said ordinance shall also extend to all areas in the
province of Bombay other than the areas specified in
the schedule to the said Act and that it shall apply
to said areas only in respect of buildings intended to
be used for the purpose of cinemas, theatres and
other places of amusement or ·entertai)lment."
The consequence of this notification was that in
the district of Ratnagiri no cinema building could be
commenced without the permission of the controller
after that date.
Ordinance I of 1948 was repealed by Act XXXI of
1948, "The Bombay Building (Control on Erection)
Act, 1948". It was made applicable to areas specified
in the schedule.
Sub-section (3) of section 1 authori~ed the provincial government by notification in·
the official gazette to direct that it shall also extend
to any- other areas specified therein. It further
authorized the provincial government to direct that
it shall apply only in respect of buildings intended to
be used for such purposes as may be specified in the
notification. B.y section 15(1) ·of the Act it was provided that-
" The Bombay Building (Control on Erection)
Ordinance, 1948, is hereby repealed and·it is hereby
1953
The State of
Boniba11
v.
I'andivrang
Vinayak
Chaphalkar
and Other11.
},fahajan J.
1953
The State of
Bombay
v.
Pandurang
Vinayak
Chaphalkar
and Others.
Mahajan J.
776
SUPREM:in COURT R]jPORTS
(1953j
declared that the provisions of sections 7 and 25 of
the Bombay General Clauses Act, 1904, shall apply
to the repeal as if that Ordinance were an enactment."
The respondents started constructing a. cinema at
Ratnagiri on 15th August,.1948, after the commQncement of Act XXXI of 1948 without obtaining the
permission of the controller of buildings as required
by the Act under the. impression that the A.ct had
application only to areas specified in the schedule
and the district of Ratnagiri not having been specified in the schedule, the provisions of the Act had no
application to that area.
As above stated, they were
prosecuted for committing an offence .under section
9(2) read with section 4 with the results abovementioned.
The order of acquittal was based on the ground that
although the notification extended the scope of the
ordinance to areas other than those which were
mentioned specifically in the schedule thereto, it did
not extend to those aieas the provisions of the Act in
spite of the application of the provisions of section
25 of the Bombay Gene.ral Clauses Act. In our judgment, the construction placed by the High Court on
the language of section 15 is erroneous and full effect
has not been given to its provisions or to the provisions of section 25 o! the Bombay General Clauses
Act.
We think on a true construction of section 15
of the Act and section 25 of the Bombay General
Clauses Act, the notification issued on 15th January,
1948, under the ordinance continued in force under
Act XXXI of 1948 and that by it the provisions of
the Act stood extended to other areas in the State to
the extent indicated in the notification. Section 25 of
the Bombay General Clauses Act, 1904, provides-
" ·where any enactment is, :ifte1· the commencement
of this Act, repealed and re-enacted by a Bombay Act,
with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, bye-law or form made or
issued under the repealed enactment shall, so far as
it is nob incl>nsistent with the provisions re-enacted,
8.0.R.
SUPREME COURT REPORTS
777
continue in. force, and be deemed to have been made
or issued nuder the provisions so re-enacted unless
and until it is superseded by any appointment, notification, order, scheme, rule, bye-law or form ·made or
issued under the provisions so re-enacted."
It cannot be contended that
the notification
was inconsistent with the provisions of Act XXXI
of 1948.
It is
clearly in
accordance with its
scheme and purpose. The High CourG did not combat
the proposition that in view of the provisions of
section 25 of the Bombay General Clauses Act the
notification continued in force after the coming into
force of the Act. It, however, held that even if the
notification was taken as having been issued under
Act :{CXXI of 1948, the notification merely extended
the ordinance to these areas and not the Act. In the
opinion of the High Court, the word "Act" instead
of " Ordinance" could not be read in the words of the
notification by the force of section 25 of the Bombay
General Clauses Act and the notification literally
construed, only extended the ordinance to those areas.
It was considered that if the intention. was to extend
the Act to these areas, such an intention could only
be carried out by enacting in Act XXXI of 1948 a
proviso like the one enacted in the Cotton Cloth and
Yarn (Control) Order, 1945, or by use of language
similar to the one used in section 9 of the Bombay
General Clauses Act, 1904. The proviso in the Cotton
Cloth and Yarn (Control) Order is in these terms:-
" Provided further any reference in any order
issued under the Defence of India Rules or in any
notification issued thereunder to any provision of the
Cotton Cloth and Yarn (Control) Order, 1943, shall,
unless a different intention appears, be construed as
reference to the corresponding provision of this
Order."
We do not find it possible to support this line of
reasoning. It appears to us that the attention of the
learned Judges was not pointedly drawn to the
concluding words of section 15 (1) of the Act. It is
specifically provided therein tha,t the provisions of
1958
The State of
Bombay
v.
Pandurang
Vinayalc
Chaphalkar
and Others. ·
Mahajan J.
)958
The State of
Botnbay
v.
Pa.ndnrana
Vtnayak
Ohaphalkar
and Others.
l.1a.hajan J.
778
SUPREME COURT REPORTS
[1953]
sections 7 and 25 of the Bombay General Clauses Act
shall apply to the repeal as if the ordinance were an
enactment. The ordinance by use of those words was
given the status of an enactment and therefore the
word "ordinance" occurring in the notification has to
be read accordingly aud as extending the Act to those
areas, and unless that is done, full effect cannot be
given to the concluding words used in section 15(1)
of the Act. The conch:ding words of section 15(1) of
the Act achieve the purpose that was achieved in the
Cotton Cloth and Yarn (Control) Order by the "proviso." By reason of the deeming provisions of section 15, the language used in the notification extending the ordinance to those are:i,s as a necessary
consequence has the effect of extending the operation
of the Act to those areas. ·When a statute enacts that
something shall he deemed to have been done, which_
in fact and truth was not done, the court is entitled
and bound to ascertain for what purposes and between
what persons the statutory fiction is to be resorted to
and full effect must be given to the statutory fiction
and it should be carried to its logical conclusion.
[Vide Lord Justice James in Ex parte Walton: In re
Levy(')). If the purpose of the statutory fiction mentioned in section 15 is kept in view, then it follows
that the purpose of that fiction would be completely
defeated if the notification was construed in the
literal manner in which It has been construed by the
High Court. In East End Dwellings Co. Ltd. v. Finsbury Borough Council( 2), Lord Asquith while dealing
with the provisions of the Town and County Planning
Act, 1947, made reference to the same principle and
observed as follows :-
" If yon are bidden to treat an imaginary state of
affairs as real, yon must surely, unless prohibited
from doing so, also imagine as real the consequences
and incidents which, if the putative state of affairs
had in fact existed, must inevitably have flowed from
or accompanied it ....... The statute says that yon
must imagine a certain state of. affairs; it does not
(r) 17 C4. D, 746, at p. 756,
(2) (1952) A.C. 109,
S.C.R.
SUPREME COURT REPORTS
779
say that having done so, you must cause or permi~
your imagination to boggle when it comes to the
inevitable corollaries of that state of affairs."
The corollary thus of declaring the provisions of
section 25 of the Bombay General Clauses Act applicable to the repeal of the ordinance and of deeming
that ordinance an enactment is that wherever the
word "ordinance" occurs in the notification, that word
has to be read as an enactment.
For the reasons given above we are satisfied that
the High Court. was in error in holding that the
notification only extended the provisions of the ordinance to Ratnagiri district and not the provisions of
Act XXXI of 1948 to that area. It may, however, be
observed that the manner ail.opted by the legislature
in keeping alive the notifications issued under the
ordinance by use of somewhat involved language iu
matters where the rights of the citi"ens regarding the
construction of buildings were being affected was not
yery happy. It has certainly led three judges to think
that the intention of the legislature was not brought
out by the language. People who are not lawyers
ma.y well be misled into thinking that the notifica.tion
issued under the ordinance has terminated with its
repeal and not having been re-issued under the Act,
the provisions of which again in clear language
provide that it only extends to areas specified in
the schedule and which gives power to extend it,
that those areas are excluded from the scope of
the Act. It would have been much simpler if the
legislature made its intention clear by use of simple
and unambiguous language.
Because of the undertaking given by the learned Attorney-General not to proceed any further in this matter, it is not necessary to set aside the acquittal order
of the respondents, \Vhich will remain as it stands.
Appeal allowed.
Acquittal not set aside.
Agent for the appellant: G. H. Rajadhyaksha.
Agent for the respondents: Ganpat Rai,
101
1953
The State of
Bombay
v.
Pand1trang
Vtnayak
Gh'lphalkar
and Others,
Mahajan J.